Times Film Corporation v. City of Chicago 19 20, 1960

• Decision Date: 23 January 1961
• Docket Number: No. 34,34
• Citation: 81 S.Ct. 391,5 L.Ed.2d 403,365 U.S. 43
• Parties: TIMES FILM CORPORATION, Petitioner, v. CITY OF CHICAGO et al. Argued Oct. 19 & 20, 1960
• Court: U.S. Supreme Court

365 U.S. 43

81 S.Ct. 391

5 L.Ed.2d 403

TIMES FILM CORPORATION, Petitioner,

v CITY OF CHICAGO et al.

No. 34.

Argued Oct. 19 & 20, 1960.

Decided Jan. 23, 1961.

Messrs. Felix J. Bilgrey and Abner J. Mikva, New York City, for petitioner.

Messrs. Robert J. Collins and Sydney R. Drebin, Chicago, Ill., for respondents.

Mr. Justice CLARK delivered the opinion of the Court.

Petitioner challenges on constitutional grounds the validity on its face of that portion of § 155—4¹ of the Muncipal Code of the City of Chicago which requires submission of all motion pictures for examination prior to their public exhibition. Petitioner is a New York corporation owning the exclusive right to publicly exhibit in Chicago the film known as 'Don Juan.' It applied for a permit, as Chicago's ordinance required, and tendered the license fee but refused to submit the film for examination. The appropriate city official refused to issue the permit and his order was made final on appeal to the Mayor. The sole ground for denial was petitioner's refusal to submit the film for examination as required. Petitioner then brought this suit seeking injunctive relief ordering the issuance of the permit without submission of the film and restraining the city officials from interfering with the exhibition of the picture. Its sole ground is that the provision of the ordinance requiring submission of the film constitutes, on its face, a prior restraint within the prohibition of the First and Fourteenth Amendments. The District Court dismissed the complaint on the grounds, inter alia, that neither a substantial federal question nor even a justiciable controversy was presented. 180 F.Supp. 843. The Court of Appeals affirmed, finding that the case presented merely an abstract question of law since neither the film nor evidence of its content was submitted. 272 F.2d 90. The precise question at issue here never hav- ing been specifically decided by this Court, we granted certiorari, 1960, 362 U.S. 917, 80 S.Ct. 672, 4 L.Ed.2d 737.

We are satisfied that a justiciable controversy exists. The section of Chicago's ordinance in controversy specifically provides that a permit for the public exhibition of a motion picture must be obtained; that such 'permit shall be granted only after the motion picture film for which sid permit is requested has been produced at the office of the commissioner of police for examination'; that the commissioner shall refuse the permit if the picture does not meet certain standards;² and that in the event of such refusal the applicant may appeal to the mayor for a de novo hearing and his action shall be final. Violation of the ordinance carries certain punishments. The petitioner complied with the requirements of the ordinance, save for the production of the film for examination. The claim is that this concrete and specific statutory require- ment, the production of the film at the office of the commissioner for examination, is invalid as a previous restraint on freedom of speech. In Joseph Burstyn, Inc., v. Wilson, 1952, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098, we held that motion pictures are included 'within the free speech and free press guaranty of the First and Fourteenth Amendments.' Admittedly, the challenged section of the ordinance imposes a previous restraint, and the broad justiciable issue is therefore present as to whether the ambit of constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture. It is that question alone which we decide. We have concluded that § 155—4 of Chicago's ordinance requiring the submission of films prior to their public exhibition is not, on the grounds set forth, void on its face.

Petitioner's narrow attack upon the ordinance does not require that any consideration be given to the validity of the standards set out therein. They are not challenged and are not before us. Prior motion picture censorship cases which reached this Court involved questions of standards.³ The films had all been submitted to the authorities and permits for their exhibition were refused because of their content. Obviously, whether a particular statute is 'clearly drawn,' or 'vague,' or 'indefinite,' or whether a clear standard is in fact met by a film are different questions involving other constitutional challenges to be tested by considerations not here involved.

Moreover, there is not a word in the record as to the nature and content of 'Don Juan.' We are left entirely in the dark in this regard, as were the city officials and the other reviewing courts. Petitioner claims that the nature of the film is irrelevant, and that even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government, it may nonetheless be shown without prior submission for examination. The challenge here is to the censor's basic authority; it does not go to any statutory standards employed by the censor or procedural requirements as to the submission of the film.

In this perspective we consider the prior decisions of this Court touching on the problem. Beginning over a third of a century ago in Gitlow v. People of State of New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, they have consistently reserved for future decision possible situations in which the claimed First Amendment privilege might have to give way to the necessities of the public welfare. It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 715—716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint 'is stated too broadly, if every such restraint is deemed to be prohibited * * *. (T)he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.' These included, the Chief Justice found, utterances creating 'a hindrance' to the Government's war effort, and 'actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.' In addition, the Court said that 'the primary requirements of decency may be enforced against obscene publications' and the 'security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.' Some years later, a unanimous Court, speaking through Mr. Justice Murphy, in Chaplinsky v. State of New Hampshire, 1942, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, held that there were 'certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' Thereafter, as we have mentioned, in Joseph Burstyn, Inc., v. Wilson, supra, we found motion pictures to be within the guarantees of the First and Fourteenth Amendments, but we added that this was 'not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.' At page 502 of 343 U.S., at page 781 of 72 S.Ct. Five years later, in Roth v. United States, 1957, 354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, we held that 'in light of * * * history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.' Even those in dissent there found that 'Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.' Id., 354 U.S. at page 514, 77 S.Ct. at page 1324. And, during the same Term, in Kingsley Books, Inc., v. Brown, 1957, 354 U.S. 436, 441, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469, after characterizing Near v. State of Minnesota ex rel. Olson, supra, as 'one of the landmark opinions' in its area, we took notice that Near 'left no doubts that 'Liberty of speech, and of the press, is also not an absolute right * * * the protection even as to previous restraint is not absolutely unlimited.' * * * The judicial angle of vision,' we said there, 'in testing the validity of a statute like § 22—a (New York's injunctive remedy against certain forms of obscenity) is 'the operation and effect of the statute in substance." And as if to emphasize the point involved here, we added that 'The phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test.' Even as recently as our last Term we again observed the principle, albeit in an allied area, that the State possesses some measure of power 'to prevent the distribution of obscene matter.' Smith v. People of State of California, 1959, 361 U.S. 147, 155, 80 S.Ct. 215, 220, 4 L.Ed.2d 205.

Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State's sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute, Ill.Rev.Stat. (1959), c. 38, § 470, and then only after a transgression. But this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment—a claim without sanction in our cases. To illustrate its fallacy, we need only point to one of the 'exceptional cases' which Chief Justice Hughes enumerated in Near v. State of Minnesota ex rel. Olson, supra, namely, 'the primary requirements of decency (that) may be enforced against obscene publications.'...